Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Hearne v. Johnson

United States Court of Appeals, Fifth Circuit

July 8, 2019

CITY OF HEARNE, TEXAS Plaintiff
v.
MILTON JOHNSON, Defendant-Cross Claimant - Appellee
v.
BRYAN F. RUSS, JR., Cross Defendant-Appellant

          Appeal from the United States District Court for the Western District of Texas

          Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.

          LESLIE H. SOUTHWICK, CIRCUIT JUDGE

         This is an appeal from the denial of qualified immunity to a city attorney in a Section 1983 suit. We conclude the plaintiff does not have standing to pursue the claim in federal court. We therefore VACATE and DISMISS.

         FACTUAL AND PROCEDURAL BACKGROUND

         Organizers in Hearne, Texas circulated an initiative petition to force a forensic audit of the city's finances. Under the City's charter, a petition, after being signed by a required number of voters, is submitted to the City. At that point, a designated City administrator has fifteen days to transmit the petition to the city council. Within ten days of receiving the petition, the city council may adopt the measure the petition demands or send it to an election. Milton Johnson, an organizer of the petition here, submitted the petition to the City's clerk in March 2016. Johnson alleges the City's policy was to have the clerk forward petitions to the county elections administrator for verification of the required signatures. Here, though, he claims the city attorney Bryan Russ obtained the signature pages to prevent their delivery to the county elections administrator in an effort to keep the initiative from appearing on a ballot.

         While Russ was allegedly preventing the signatures' certification and before any of them were certified, the city council considered Johnson's petition and voted to challenge its validity. That challenge came in the form of a lawsuit against Johnson in Texas state court on grounds having nothing to do with the signature requirement. By the end of April 2016, all of the signatures were delivered for certification.

         Along with his answer to the City's suit, Johnson filed a third-party complaint against Russ and his law firm under 42 U.S.C. § 1983. Russ removed the suit to federal court in July 2016, relying on the right to remove when federal and state law claims are joined. See 28 U.S.C. § 1441(c). The City and Johnson subsequently settled their dispute. Johnson's claims against the law firm were dismissed for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The only surviving dispute is Johnson's Section 1983 claim against Russ. Russ moved for summary judgment based on qualified immunity, but the motion was denied. He appealed.

         DISCUSSION

         Johnson alleges that Russ violated his "First Amendment right to petition for redress of grievances as well as his Fourteenth Amendment right to equal protection." We decline to reach the merits of Russ's qualified immunity defense to these arguments because Johnson lacks standing to assert either.[1]

         Neither party has questioned our jurisdiction over this appeal, but "we must raise the issue of jurisdiction on our own motion if necessary." Bernhard v. Whitney Nat'l Bank, 523 F.3d 546, 550 (5th Cir. 2008). This includes a sua sponte examination of the district court's jurisdiction. See United States v. Creamer Indus. Inc., 349 F.2d 625, 626 (5th Cir. 1965). Johnson as the party asserting federal jurisdiction must show it exists, an obligation that applies even when we sua sponte raise the question in the review of a summary judgment determination. Ford v. NYL Care Health Plans of Gulf Coast, Inc., 301 F.3d 329, 332-33 (5th Cir. 2002).

         It is true that Johnson involuntarily arrived in the federal court because the defendant Russ removed the case from state court. Once in federal court, though, Johnson sought the court's resolution of Section 1983 claims against Russ. In order to have the court resolve those claims, it is Johnson's burden to demonstrate we have jurisdiction. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 339, 342 n.3 (2006).

         The jurisdictional question is whether Johnson has standing. He "must show: (1) [he] has suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is fairly traceable to [Russ's] conduct; and (3) a favorable judgment is likely to redress the injury." Houston Chronicle Publ'g Co. v. City of League City, 488 F.3d 613, 617 (5th Cir. 2007). Mere allegations are insufficient to defeat a motion for summary judgment. Instead, through an affidavit or other evidence, the opponent of the motion must offer "specific facts" that "will be taken to be true." Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citations omitted). In our ana;ysis of standing, we grant Johnson "all reasonable factual ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.